Dunne v DPP: Court clarifies law in relation to causation and duress in murder

Here, the Supreme Court held, firstly, that a person can be found guilty of murder where their action is more than a minimal factor in causing the death. And secondly, that the prohibition on duress as a defence against a murder charge is a long-standing rule of law which is so fundamental that it could only be changed by legislation.




In July 2007, Jonathan Dunne shot his friend Ian Kenny at close range with a sawn-off shotgun. Dunne claims he committed that act under the duress of threats against himself and his family. Kenny’s injuries were to the shoulder and head. He did not die immediately; but he did not recover consciousness afterwards. He died two years later from pneumonia caused by his permanent vegetative state which was caused by the gun shot, after his doctor decided, in conjunction with Kenny’s father, not to provide further medical intervention. In the intervening period, Dunne pleaded guilty to attempted murder and possession of a firearm.

In 2012, subsequent to Kenny’s death, the Central Criminal Court convicted Dunne of the murder of Ian Kenny. The trial judge refused to allow the jury to consider the defence of duress.  Therefore, Dunne stood convicted of attempted murder and of murder of the same person for the same action. The Court of Criminal Appeal refused his appeal against the murder conviction. Dunne requested that the points of law raised be certified as being of exceptional public importance. O’Donnell J (here) certified two questions as points of law of exceptional public importance for determination by the Supreme Court.

(i) Where the date of death alleged in an indictment for murder occurs at a point of time removed from the incident and actions alleged against the accused and after the intervention (itself lawful) of a third party, may the accused be convicted of murder?
(ii) May duress be raised as a defence (whether full or partial) to a charge of murder?

In the Supreme Court, Dunne argued that had the third parties not made a positive decision not to provide medical interventionbut for that decisionKenny might have survived and the murder charge would not have arisen. Although it may not have been in Kenny’s best interest to intervene, that decision not to do so should not give rise to criminal liability for Dunne.

Dunne cited English authority to support his argument that there is no common law rule against the applicability of duress as a defence to murder; he drew the Court’s attention to recommendations by the Law Commission of England and Wales that duress should be an allowable defence, and to the Law Reform Commission’s consultation paper which recommended that a successful defence of duress should reduce a charge of murder to manslaughter; and he cited from the South African Appellate Division decision in S v Goliath (1972) 3:

In the application of our criminal law, in the cases where the acts of an accused are judged by objective standards, the principle applies that one can never demand more from an accused than that which is reasonable, and reasonable in this context means, that which can be expected of the ordinary, average person in the particular circumstances. It is generally accepted, also by the ethicists, that for the ordinary person in general his life is worth more than that of another. Only they who possess the quality of heroism will intentionally offer their lives for another. Should the criminal law then state that compulsion could never be a defence to a charge of murder, it would demand that a person who killed another under duress, whatever the circumstances, would have to comply with a higher standard than that demanded of the average person. I do not think that such an exception to the general rule which applies in criminal law is justified.



O’Malley J wrote the judgment for the Court. She stated that the authorities demonstrate the following principles:

(i) Causation in homicide may be broken by exceptionally negligent medical treatment (as in Jordan, where the victim was administered medication to which the medical personnel had reason to know he was intolerant), but it is not disrupted by conventional treatment even if there is evidence that the treatment offered might not have been the best available (Smith). Nor is it broken if the reason for a failure to provide appropriate treatment is a decision by the victim to refuse such treatment (Blaue).

(ii) A lawful and ethically proper decision to withdraw life support where there is a diagnosis of brain death does not mean that the original injury did not cause death if the injury inflicted is still an operational cause of the death (Malcherek and Steel).

(iii) It is an aspect of the Constitutional right to life that, in an appropriate case, a decision may be made that it is in the best interests of a patient to withdraw medical treatment of an invasive nature (In Re A Ward of Court). That decision can involve a choice to let nature take its course where continuation of such treatment serves no curative purpose. Where such a decision is made, the cause of death remains the original injury unless there has been, in the intervening period, a true novus actus interveniens.

(iv) A novus actus interveniens in this context would be something that is so independent of the act of the accused that it should be regarded in law as the cause of death. The fact that the immediate cause of death is an act by a third party does not necessarily break the chain of causation where that act is brought about by the act of the accused and is itself lawful and reasonable (Pagett).

She held that, applying those principles, Dunne is responsible for the condition that ultimately led to Kenny’s death.

In relation to duress, O’Malley J stated that:

In my view, what the appellant seeks here is not the development or extension of existing principles. It is the uprooting of a rule embedded for some hundreds of years in the common law, and the creation of an entirely new rule to apply, as the Court sees fit, to a greater or lesser extent. This is not put forward on the basis of any claim of Constitutional right, but purely on the basis that some other courts of other jurisdictions have preferred the policy of the proposed new rule and the argument that this Court is free to follow that policy.

O’Malley J answered yes to question (i) and no to question (ii). McKechnie J, Dunne J and Charleton J concurred. The recently deceased Justice Hardiman also sat on the panel which heard the appeal.

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